Archives for November 2016
In prior posts (here and here), I looked at the pro-union agenda of the Obama administration’s National Labor Relations Board, and the anti-employer policies undertaken by the Equal Employment Opportunity Commission, Occupational Safety and Health Administration, and Department of Labor. The leadership of the Department by Thomas Perez deserves a closer look, for Secretary Perez has brazenly promoted the objectives of organized labor at the expense of the rule of law.
Benefit-Cost Analysis (BCA) is now widely known and used, but it is also widely misunderstood – by many of its advocates as well as its detractors. Over the next few weeks I want to examine some of the strengths and weaknesses of BCA as a normative science; and, yes, that phrase is an oxymoron, which is a source of much of the controversy. BCA is an imperfect answer, but often perhaps the best available answer, to the question of how a society should go about making collective but not unanimous choices. Nowhere is its use more contested than in its application to decisions by regulatory agencies.
So yesterday Michael Greve announced that he was going to step back from full-time blogging and would join our conversations from time to time. Mike has been a part of this site since its launch in 2012 and has contributed much to its success. I know that his regular posts will be greatly missed. As one reader commented to Mike, “You have been a lucid and consistent voice in a relative wilderness. I am a non-lawyer who has learned a ton about administrative law and executive federalism: fascinating and horrifying in equal parts. I am sure there are other law professors who know…
Democrats are all abuzz with criticisms of the FBI's reopening of the e mail investigation of Hillary Clinton. Some people talk of this being unprecedented or the worst October Surprise. Sadly, these criticisms appear ignorant of what Lawrence Walsh did many years ago to help elect Hillary's husband. For those who do not remember, the story is told here and here. Put briefly, there is a way to understand James Comey's behavior as honorable. There is no way to understand Lawrence Walsh's behavior that way. Sadly, people who should know better don't seem to. At the 538 site, Harry Entin reviews six examples of October…
Most people think of judicial review in the way that Justice Owen Roberts described it in a 1935 Supreme Court decision:
The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty — to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question.
It seems straightforward. A judge takes a law, sets it next to the Constitution, and determines whether the “latter squares with the former.”